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US Supreme Court: Video Games Qualify For First Amendment 458

Posted by CmdrTaco
from the somebody-thought-of-the-children dept.
Wrath0fb0b writes "The United States Supreme Court threw out a California law prohibiting the sale of violent video games to minors. Notable in the opinion is a historical review of the condemnation of "unworthy" material that would tend to corrupt children, starting with penny-novels and up through comic books and music lyrics. The opinion is also notable for the odd lineup of Justices that defies normal ideological lines, with one conservative and one liberal jurist dissenting on entirely different grounds. In the process, they continue the broad rule that the First Amendment does not vary with the technological means used: 'Video games qualify for First Amendment protection. Like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium. And the basic principles of freedom of speech... do not vary with a new and different communication medium.'"
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US Supreme Court: Video Games Qualify For First Amendment

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  • by d3ac0n (715594) on Monday June 27, 2011 @11:54AM (#36584784)

    Let me just say; Hear hear! Well done Supreme Court.

    Our rights (ALL of them) are not to be given away to petty tyrants for any reason, even "For the Children".

    • by Kenja (541830)
      The counter argument is that children dont have the same rights as adults. That being said, I have no issue with parents being required to make decisions as to which games they allow their kids to play, provided that information is out there for them to make an informed decision.
      • by JSBiff (87824)

        This case isn't about the rights of children. It's about the rights of the stores, the publishers, and the developers.

        Honestly, however, most stores will probably *voluntarily* continue to not sell Rated-M videogames to minors, because they will not want to P.O. the parents and the large (but perhaps minority) portion of the population that thinks it's not right to sell such material to minors. This ruling doesn't mean stores are forced to sell them to minors, just that they have the *freedom* to choose to

        • In particular, it's sometimes hard to determine whether or not you *are* selling to a minor - consider an online retailer: it would be pretty easy for a minor to order something with their parent's credit card, name, address, so they wouldn't know they were selling to a minor.

          If it's the parent's credit card being used, the parent will learn about it when they look at their statement, I know I reconcile mine. If it's a stolen credit card being used, there are already bigger problems in that household than a child buying a violent video game. Ultimately, the online purchase age verification takes care of itself with the use of a credit card.

      • by mcgrew (92797) *

        This isn't an issue with the children's rights, its about the publishers' rights to free speech. However, I can see making them label the games so the kids' parents can decide. Parenting is for parents, not governments. I let my daughters play Quake when they were 12 (in fact we had lots of fun fragging each other on the home network) but it was MY decision. They were my kids, and I raised them like I wanted to (both are still gamers, the youngest is now assistant manager of a GameStop store making damned g

    • by ArcherB (796902) on Monday June 27, 2011 @12:02PM (#36584906) Journal

      Let me just say; Hear hear! Well done Supreme Court.

      Our rights (ALL of them) are not to be given away to petty tyrants for any reason, even "For the Children".

      As a fellow conservative, I must disagree. I see no problem with a state limiting what a minor may buy. Just a state may place limits on buying alcohol, pornography and cigarettes, I see no reason why a state may not place age restrictions on video games.

      Note: No is saying that minors are not allowed to play these games, only to PURCHASE them. As a parent, I not only appreciate the idea that I would have to be the one to purchase the material, but I also like the idea that other parents would have to purchase the material for their kids. It's a parent's responsibility to keep up with what their kids are doing. This law would have helped a parent do that. As for the parents too lazy to get off their ass to buy the games? These are the same parents that won't monitor what their kids are doing and are EXACTLY the parents of the kids I don't want owning violent/pornographic video games.

      With all that said, I would more than likely buy such games for my kids and even play them with them, but I like the idea of ME being in control.

      • Re: (Score:3, Insightful)

        by jdastrup (1075795)
        While I agree with most of what you said, you also understand that if your child buys a violent video game without your permission, even if the state/country/store/vendor allows it, then you're not in control of your child, are you?

        Another example, cigarettes. So what if a store can't sell them to your child. He/she can still get them somewhere else, have someone else buy them, etc. I don't really care if a store can sell my son cigarettes or not. I raise my children not to smoke, regardless of the source
        • Eh.

          You can't make it impossible for anyone to get anything, but that doesn't mean that making it harder for someone to get something serves no purpose.

      • by zzsmirkzz (974536) on Monday June 27, 2011 @12:10PM (#36585026)

        I see no reason why a state may not place age restrictions on video games.

        Because that is the state putting a restriction on speech which they are specifically denied the power to do. This is what the Supreme Court determined and is true. Just because you "do not see the reason", doesn't make it false. Read the Constitution and learn & accept the limitations on the power of The State that were included - they were put there for a reason, from lessons learned from the experiences of the people at the time. When it comes to abuse of power from the State/Government they knew a lot more than we do, they lived through it - their experience/wisdom should be learned from and respected.

        • The state can and does put limits on speech where harm is likely or actual. The Supreme Court has ruled that they must be reasonable restrictions. I haven't yet read the decision itself in its entirety, but the excerpts that I have seen from skimming through it have suggested that one of the major issues is that no significant harm to children has been demonstrated. Children cannot purchase pornography, for example. Libel and slander laws are generally constitutional. The Supreme Court has also found t

      • by Qzukk (229616)

        Just a state may place limits on buying alcohol, pornography and cigarettes

        None of which are protected by the first amendment, BTW.

        • by h4rr4r (612664) on Monday June 27, 2011 @12:27PM (#36585334)

          The middle one should be.

          • by Qzukk (229616)

            Obscenity is excluded so that the jobs of the morality police are easier.

            • by d3ac0n (715594)

              Obscenity is excluded so that the jobs of the morality police are easier.

              No, Obscenity is excluded so that parents and families don't have to deal with issues of trying to protect their kids from public displays and advertisements that include pornographic images.

              It's one thing to task parents with the duty of proper child rearing, which society has always done and which this SCOTUS decision reinforces. It's something else entirely to then turn around and make that task nearly impossible by allowing the porn/adult industry to inundate all of public life. (more than it already h

              • by h4rr4r (612664)

                I am American and have lived outside the USA. We need to get over our sex hangups. Public displays of violence, like the ads for major blockbusters are surely worse for children than seeing images of procreation.

              • by Qzukk (229616) on Monday June 27, 2011 @01:43PM (#36586560) Journal

                No, Obscenity is excluded so that parents and families don't have to deal with issues of trying to protect their kids from public displays and advertisements that include pornographic images.

                Funny how your ideals don't match our reality. How many arrests under obscenity law have anything to do with selling or showing porn to children? When you have to fly porn producers from California to Pennsylvania [wikipedia.org] in order to find someone they offend, what is the point of "community standards"?

        • by Hatta (162192)

          Pornography is protected by the Constitution. The problem is that the Constitution is not respected by those who are charged with upholding it. There is no obscenity exception in the First Amendment.

      • by anyGould (1295481)

        Just a state may place limits on buying alcohol, pornography and cigarettes, I see no reason why a state may not place age restrictions on video games.

        My first reason would be - because it doesn't seem to stop kids from getting their hands on it anyway. And oddly enough, the most common place for kids to sneak out booze/porn/ciggies from is... from their parents. ;)

      • What if the parents are too lazy to be parents, and so just buy any game their kid wants? I'm not trying to make a moral judgement here, I just think it's silly to equate a good parent with one that will buy stuff.

        It's incredibly easy for anyone to get anything these days without buying it. If the parent won't buy it, the kid can torrent it. I can just imagine the lobbying now: Lazy parents encourage piracy! Kill them all (and their kids!).

      • by ALeavitt (636946) <aleavittNO@SPAMgmail.com> on Monday June 27, 2011 @12:30PM (#36585386)
        How can you call yourself a conservative while at the same time supporting expansion of government power over the lives and speech of citizens? I think it might be time for you to look up what defines a real conservative.
        • by nschubach (922175) on Monday June 27, 2011 @12:49PM (#36585726) Journal

          There are some "conservatives" (I'll call them the Glenn Beck inspired conservative) that feel that the intent of this country was as a "Word of the Bible" following Christian country with all morals and values enforced.

          Ironically, it would make The Constitution the most hypocritical document ever written... but that's not part of their thought process.

      • by Wyatt Earp (1029) on Monday June 27, 2011 @12:57PM (#36585848)

        "As a fellow conservative, I must disagree. I see no problem with a state limiting what a minor may buy. Just a state may place limits on buying alcohol, pornography and cigarettes, I see no reason why a state may not place age restrictions on video games."

        One of the reasons Justice Scalia gave was that, historically, many children's books and stories were very violent. "Unlike depictions of "sexual conduct," Scalia said, there is no tradition in the United States of restricting children's access to depictions of violence, pointing out the violence in the original depiction of many popular children's fairy tales like Hansel and Gretel, Cinderella and Snow White.Certainly the books we give children to read — or read to them when they are younger — contain no shortage of gore," Scalia added.

        A 7-2 split is pretty strong, even though two members of the majority made it sound like they'd support some sort of lesser restriction, that still puts it at 5-4 against any restrictions.

      • We'd best make it a criminal offense to sell certain books, movies, music, comics, etc to children because they might be corrupted by the evil influence of Elvis' hips. With more or less the sole exception of pornography, these are unhindered by law -- why should video games (which have a rating system similar to movies with similar voluntary enforcement, note that books have no such restrictions) be the exception?

      • by Sloppy (14984)

        Note: No is saying that minors are not allowed to play these games, only to PURCHASE them.

        Limiting purchase is also limiting sale and distribution; the speaker's rights are being infringed. Nobody has come up with a way to limit someone's ability to buy something, which doesn't somehow also limit someone's ability to sell something. And since so much speech today is for-sale speech (i.e. not everyone is handing out pamphlets for free; some people sell books), putting limitations on sales in considered equ

      • by Hatta (162192) on Monday June 27, 2011 @02:15PM (#36587034) Journal

        I see no reason why a state may not place age restrictions on video games.

        Because children have first amendment rights too. The fact that you can't see this is why conservatives are so fucking scary.

    • Then you might want to become a liberal. Thomas (arch-conservative) and Breyer (moderate liberal) voted against the majority but Alito (conserative) and Roberts (conservative) indicated that their support for the decision was soft and that they thought it was too sweeping according to the WaPo story on it. That makes the next challenge, essentially, start from a 5-4 decision... ripe for change and "clarification."

      • Note that the "reasoning" of Thomas was that the original view of the First Amendment at the time the Bill of Rights was enacted "does not include a right to speak to minors (or a right of minors to access speech) without going through the minors' parents or guardians."

  • Didn't see that coming.
  • by jarich (733129) on Monday June 27, 2011 @11:59AM (#36584862) Homepage Journal
    The court said that parents should filter what their children see and do. Score one against the nanny state monitoring us for our own good.
    • by ArcherB (796902)

      The court said that parents should filter what their children see and do. Score one against the nanny state monitoring us for our own good.

      If a parent won't get off their ass to buy the games for their kids, this parent won't monitor what their kids see and do.

      • by hedwards (940851)

        Right, and the alternative is telling all parents what they can and can't allow their children to buy. Don't delude yourself, banning children from buying these materials isn't likely to result in any shortage of such materials getting into the hands of children. Which presumably this is all about.

  • Nice to know that the Supreme Court recognizes speech as speech.

    The people who failed that test should be disbarred. Maybe exiled.
    • by idontgno (624372)

      The people who failed that test should be... Kicked from the #law_of_the_land chat channel as an obvious bot. Think of it as a human rights Turing Test.

  • by CokeBear (16811) on Monday June 27, 2011 @12:01PM (#36584904) Journal

    Only Thomas and Breyer dissented; one of the most conservative, and one of the most liberal.

    • by BlaKnail (545030) <blindspot AT nimh DOT net> on Monday June 27, 2011 @12:40PM (#36585558)
      Breyer's dissent has a bit of nice reasoning in it, actually.

      "But what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13 year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restrict- ing sales of that extremely violent video game only when the woman—bound, gagged, tortured, and killed—is also topless? This anomaly is not compelled by the First Amendment. It disappears once one recognizes that extreme violence, where interactive, and without literary, artistic, or similar justification, can prove at least as, if not more, harmful to children as photographs of nudity. And the record here is more than adequate to support such a view. That is why I believe that Ginsberg controls the outcome here a fortiori. And it is why I believe California’s law is constitutional on its face. "

      Basically, the court had previously ruled that it's ok to ban porn sales to children, and the court is generally bound to prior rulings unless overturned by new legislation. The logic used to ban pornography sales to kids still applies to this case. Not saying it's a good law, but Breyer's position makes a lot of sense.
      • It's always interesting to learn more about what "liberal" and "conservative" mean. In this case the line seems to be drawn based on whether sex or violence is the greater evil.
    • A typical Breyer cite:

      Weber, Ritterfeld, & Mathiak, Does Playing Violent Video Games Induce Aggression? Empirical Evidence of a Functional Magnetic Resonance Imaging Study, 8 Media Psychology 39, 51 (2006).

      A typical 0Thomas cite:

      C. Mather, A Family Well-Ordered 38 (1699).

      Truly, one can be wrong in a myriad of ways!

  • How... Ironic. (Score:5, Insightful)

    by fuzzyfuzzyfungus (1223518) on Monday June 27, 2011 @12:06PM (#36584974) Journal
    " JUSTICE THOMAS, dissenting.

    The Court’s decision today does not comport with the original public understanding of the First Amendment. The majority strikes down, as facially unconstitutional, a state law that prohibits the direct sale or rental of certain video games to minors because the law “abridg[es] the freedom of speech.” U. S. Const., Amdt. 1. But I do not think the First Amendment stretches that far.

    The practices and beliefs of the founding generation establish that “the freedom of speech,” as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians. I would hold that the law at issue is not facially unconstitutional under the First Amendment, and reverse and remand for further proceedings."

    Justice Thomas should, perhaps, stop to consider that the "practices and beliefs of the founding generation" establish a number of other interesting boundaries to the distribution of various freedoms...
    • by erroneus (253617)

      I think judges don't know what speech is any more. Recently we saw that confidential data having to do with what drugs are being prescribed to be used in marketing is speech. Now, adult materials in the form of a game is speech.

      My first reaction, like so many others was "okay, then kids can buy porn now too right?" I think judges are flipping coins in their chambers and announcing rulings or something like that.

      • The judges didn't rule you couldn't ban violence from childen. They ruled you couldn't arbitrarily ban violence in only video games. The ruling says they threw it out because "the basic principles of freedom of speech... do not vary with a new and different communication medium." California can rerite the law to ban selling anything containing violent speach to children without a parent being present. If they do they might get a different verdict.
    • by dcollins (135727)

      To play devil's advocate, a consistent response might be -- Some of those other practices and beliefs were overturned via the amendment process, which isn't the case here.

    • The irony is interesting, on more than one level. But his central point, which is that "freedom of speech" allows restriction of speech to children, is a sound one. As online games replace video games, this ruling could have had profound precedent on censorship of the internet insofar as children have access to "redtube" and "youporn". I don't know whether the result would have been good or bad, but it looks like the Supreme Court is kicking the can down the road a bit farther, whereas Thomas would have
      • I find is argument a bit dodgy when it concerns a first-amendment challenge to a state law regulating adults.

        If little Timmy Jones were to, after being denied a hit of sweet, sweet, GTA, file a civil-rights case against Mr. and Ms. Jones for the suppression of his free speech rights, the fact that the constitutional framers did not see themselves as freeing children from the restrictions of their parents/guardians would be relevant to his getting shot down. As far as suggesting that the mores of the writ
  • by Anonymous Coward

    Kids can't buy porn.
    Kids can't see R-rated movies.
    Kids shouldn't be able to buy violent video games.

    As a life long gamer I see absolutely no problem with restricting sales of games with violence or sex to adults only.
    What's the point of challenging that? Do we want 8-year olds to save their lunch money and play Grand Theft Auto?

    • by Anonymous Coward on Monday June 27, 2011 @12:21PM (#36585210)

      You, like many people who don't live in the US or don't understand how the laws work, are missing the point, which is that the *government* does not regulate any of those things. The US movie industry is self-regulating, that is, production houses submit their movies to the MPAA, which gives the film a rating. The producers don't *have* to do this, but if they don't, their movie likely won't be shown in any US theaters, who generally require every film to carry an MPAA rating.
      Again, the government has nothing to do with this. Additionally, the government cannot punish theaters for allowing kids in to R-rated movies, as that would be unconstitutional restriction of free speech. It's entirely up to the theater itself, a private company who has the right to deny access to anyone they want.

      Currently, the video game industry works the same way: ESRB ratings are voluntary, not required by law, but publishers submit their games for ratings because they want their games in stores. It's up the stores, private companies, to decide whether to enforce these ratings.

    • by potat0man (724766)
      Kids can see R-rated movies under the law. It's theaters that won't allow them in by policy.

      Do we want 8-year olds to save their lunch money and play Grand Theft Auto?

      I don't. But there are better ways to prevent this from happening. Parenting. And supporting store policies that don't allow sales of violent games to minors. No need to brandish police force or put people in prison over it.
    • First, there's two different issues here ... porn vs. violence. The courts have long established that porn is considered obscenity, and therefore, does not qualify under the First Amendment. They've never said the same thing about violence, which they're re-affirming here. (Although, I wasn't sure if they were saying that animal cruelty was or wasn't considered obscene)

      In the case of kids seeing R-rated movies -- it's not illegal. It's the movie producers an theatres acting as a group to set standards,

    • What's wrong with 8 year olds playing Grand Theft Auto? Great game. Honestly, anyone that talks about GTA as if it's some horrific soul destroying thing, has never played it. There are many darker games out there. I was playing stuff like Mortal Kombat when I was 9. You could rip your opponents head off, with their spine still dangling and dripping blood. You could rip out their still beating heart. To this day, I've never actually tried to do either of those things for real.

    • Pointing out other violations of the constitution does not make this one ok. In most cases however, you're talking about a companies policy to not sell to minors... which is a world of difference from a LAW forbidding it. Stores can continue to ask for ID, they just can't be forced to by law. I think the exception here is for porn, which I believe was held as an exception by the court. I personally would never want a minor to be able to buy porn without parental concent, but that's for parents and businesse
  • We need a new tag for this...

  • The strangest thing about this law was that it was supported by Arnold Schwarzenegger .

  • The issue is that we have a huge responsibility as a society to have some values, they may and often do vary, for life, liberty and the pursuit of happiness. If a family doesn't value life then feed them violent games and let the mayhem begin. But don't expect me to pay for the jailing of those offenders when they act out their fantasy in a violent or criminal manner. Teach someone caring, love, tranquility and happiness and likely you will have just that in their and your lives. Teach them violence and
  • Now abolish software patents, because it's mathematics applied to a different medium. (Other than the human mind.)

  • by n1ywb (555767) on Monday June 27, 2011 @12:35PM (#36585468) Homepage Journal
    Except that material can and is still deemed "obscene" and banned for children, typically due to sexual content. What sort of country do we live in where gratuitous ultraviolence is OK but procreation is still taboo? All this talk about how important first amendment protections are for violence but heaven help the children if they see somebody's ding dong! Don't get me wrong, I'm opposed to censorship. I just wanted to point out the hypocrisy.
  • What makes grand theft auto protected and porn not?

    • by Toze (1668155)
      Everyone will admit to playing video games.
    • by canajin56 (660655)

      There are quite a few differences, actually. First and foremost, to restrict any speech, the government must be able to show the court that the speech in question would "surely result in immediate, direct, and irreparable damage to the nation and its people". The accepted argument is that grossly obscene pornography causes harm to the viewer and also to the moral fabric of the nation. Once you have established this, it's easier to also say that since children are not adults, that the threshold for "obsc

  • Amidst all the bending over backwards to let corporations do whatever they want under the reasoning of Free Speech, it's nice to at least see the Supreme Court being consistent in their application of the First Amendment.
  • This would then open the door for kids to be able to go into any movie they want without parental permission... Or buy porn... I don't know if I agree with this one. It's just one case citation away from unknowingly exposing kids to all the other "media" restricted to adults.
  • by oneiros27 (46144) on Monday June 27, 2011 @01:19PM (#36586210) Homepage

    You gotta love supreme court opinion that reference both Lord of the Flies:

    California's argument would fare better if there were a longstanding tradition in this country of specially restricting children's access to depictions of violence, but there is none. Certainly the books we give children to read--or read to them when they are younger--contain no shortage of gore. ... And Golding's Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island.

    ...and 'Pick a Path' / 'Choose Your Own Adventure' type books:

    California claims that video games present special problems because they are "interactive," in that the player participates in the violent action on screen and determines its outcome. The latter feature is nothing new: Since at least the publication of The Adventures of You: Sugarcane Island in 1969, young readers of choose-your-own- adventure stories have been able to make decisions that determine the plot by following instructions about which page to turn to.

    And understands the difference between causation and correlation:

    The State's evidence is not compelling. California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport to show a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them,6 and with good reason: They do not prove that violent video games cause minors to act aggressively (which would at least be a beginning). Instead, "[n]early all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology." [] They show at best some correlation between exposure to violent entertainment and minuscule real-world effects, such as children's feeling more aggressive or making louder noises in the few minutes after playing a violent game than after playing a nonviolent game.7

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